Capitalising on the ambiguity around the issue — two different pieces of legislation and rulings of the Chair — Lok Sabha Speaker Sumitra Mahajan is likely to deny the Congress the vital post of the Leader of Opposition (LoP).

The Congress could have let the matter pass if it were just a matter of status or perquisites enjoyed with a Cabinet-rank, which the post entails. But the LoP in the Lower House, as a result of Supreme Court decisions and legislative provisions, has acquired a larger systemic role. The LoP is a member of panels mandated to select appointees to some prime positions, which include the Chief Commissioner of the Central Vigilance Commission (CVC), Chief Information Commissioner, Lokpal, Director of CBI, National Human Rights Commission (NHRC) and Secretary-General of the Lok Sabha.

The Congress’s numbers — merely 44 in a House of 543 — certainly don’t help but the party won’t allow the BJP-led Government to deny it this major leverage without putting up a fight.

For, the Congress has nothing to lose in the battle. In fact, the issue has provided it with an excuse to disturb proceedings of the House and put the ruling BJP on the defensive. As reported in The Indian Express on Friday, it has prepared its argument in an eight-page note. The second part of the Congress game-plan is to take the matter to the Supreme Court by making it a case of violation of the letter and spirit of the decisions given by it from time to time. The Congress believes that by raking up a controversy, it would be able to project Prime Minister Narendra Modi’s Government as “undemocratic,” “intolerant of dissent” and insecure despite its numbers.

As a first step for building up its case, the party deputed Mallikarjun Kharge and chief whip Jyotiraditya Scindia to Mahajan on Thursday to convey its view along with a request to take a decision in its favour in “true democratic spirit.”

The Rules of Business & Procedures of the Lok Sabha are silent on the issue. The players in the game are drawing on three sources. The Congress cites the Salary and Allowances of Leaders of Opposition in Parliament Act, 1977. It defines the leader of Opposition as “a member of the Council of States (Rajya Sabha) or the House of the People (Lok Sabha), as the case may be, who is, for the time being, the leader in that House of the party in opposition to the government having the greatest numerical strength and recognised as such by the chairman of the Council of States or the Speaker of the House of the People, as the case may be”. There is no mention of a requisite 10 per cent strength.

The Congress claim is weakened by Direction 121 (1) of the “Directions by the Speaker, Lok Sabha” (under the rules formulated by Ganesh Vasudev Mavalankar in 1953). It warrants that a party must have at least 10 per cent of the strength of the House in order to qualify to be designated as a parliamentary group — “that is, their number should not be less than the quorum fixed to constitute a sitting of the House, which is one-tenth of the total membership.” This implies that the Congress needs at least 55 MPs to qualify for being recognized by the Speaker as a parliamentary party and enable its leaders to get eligible to become the LoP.

The third source, Section Two of the 1998 Leaders and Chief Whips of Recognised Parties and Groups in Parliament (Facilities) Act, lays down that a “recognised party” needs at least 10 per cent of the total strength of the respective House (55 members in the Lok Sabha).

There was no provision for an LoP till 1969. Ram Subhag Singh of the Congress-O had the distinction of becoming the first LoP after the Congress split. There was no LoP in the Fifth Lok Sabha. The CPI(M), the largest opposition group with 25 members, did not get this status. Again, there was no LoP after the 1980-polls, with the main opposition party, Janata Party (S), getting only 41 seats. The next Lok Sabha threw up a similar situation. The Telugu Desam got the maximum 30 seats from amongst opposition parties, but its leader P Upendra was not designated the LoP.

The BJP has some other surprises for the Congress in store. Unless there is a change in the script, the party may give the job of deputy speaker to M Thambidurai of the AIADMK, who has held the post earlier. At a time when the party has to part with something to an Opposition party, why not oblige Tamil Nadu Chief Minister J Jayalaithaa, who shares a good rapport with Modi. The BJP may have little choice vis-a-vis the Public Accounts Committee, whose chairmanship conventionally goes to the largest opposition party. BJD group leader Bhartruhari Mahtab may be given the chairmanship of another important panel, Parliamentary Committee on Finance.